ATTORNEY AT LAW | SAN DIEGO

Domestic Violence

This page provides an overview of the the term “domestic violence” under the California Family Code and under the California Penal Code. It identifies those persons to whom the term applies, and the procedure for obtaining or conversely defending against a court-ordered domestic violence restraining order in family court.

Two things you should take away are: (1) under the California Family Code, the term “domestic violence” is very broadly-defined and encompasses much, much more than just physical violence (and domestic violence under the Penal Code); and, (2) to prove domestic violence in family court is much, much easier than proving domestic violence in criminal court (see the subheading The Three Standards of Proof at Rebuttable Presumptions and Standards of Proof).

DOMESTIC VIOLENCE, PERPETRATOR, AND VICTIM AS DEFINED UNDER THE FAMILY CODE’S DOMESTIC VIOLENCE PREVENTION ACT

A cohabitant or former cohabitant (meaning a person who regularly resides in the household or who formerly regularly resided in the household);

A person with whom the alleged perpetrator is having or has had a dating relationship or engagement relationship;

A person with whom the alleged perpetrator has had a child where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Fam. Code sec. 7600, et seq.);

A child of a party or a child who is the subject of an action under the Uniform Parentage Act where the presumption applies that the male parent is the father of the child to be protected; and,

Any other person related by consanguinity or affinity within the second degree. (Fam. Code sec. 6211.)

The DVPA defines “abuse” as:

Intentionally or recklessly causing or attempting to cause bodily injury;

Sexual assault;

Placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another;

Knowingly and without consent credibly impersonating another through or on an internet website or by other electronic means for the purpose of harming, intimidating, threatening, or defrauding another person;

Falsely impersonating another in either his or her private or official capacity, and in that assumed character becoming bail or surety for any party in any proceeding whatever, before any court or officer authorized to take that bail or surety; verifying, publishing, acknowledging, or proving, in the name of another person, any written instrument, with intent that the same may be recorded, delivered, or used as true; or doing any other act whereby, if done by the person falsely impersonated, he might, in any event, become liable to any suit or prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit might accrue to the party impersonating, or to any other person;

With intent to annoy, telephoning and making contact with another actual person (including, but not limited to, making contact by means of an electronic communication device) and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family. (note: this does not apply to telephone calls or electronic contacts made in good faith);

With intent to annoy or harass, making repeated telephone calls or making repeated contact by means of an electronic communication device or making any combination of calls or contact, to another person (note: this does apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business); or,

Destroying the personal property of, contacting either directly or indirectly by mail or otherwise, or coming within a specified distance or disturbing the peace of a protected person. (Fam. Code secs. 6203 subd. (a), 6320 subd(a).)

From the list above, notice that the term “abuse” is not limited to the actual infliction of physical injury or assault. (See Fam. Code sec. 6203(b).) Frequent causes of “abuse,” for example, are: taking possession of the smartphone of a spouse, boyfriend or girlfriend without consent for the purpose of reviewing text messages, emails, and recent calls; destroying the phone or pulling the telephone line out of the wall so the victim cannot call 911; or, making harassing telephone calls to the victim, or sending unwanted emails or text messages to the victim, when the victim has made it clear that he or she desires no communication.

Child neglect or child endangerment also may constitute abuse. If a Child Welfare Services (formerly called Child Protective Services) case is opened based on an allegation of child neglect or child endangerment, and the allegation is deemed “substantiated” after investigation, the judicial officer may base a finding of domestic violence wholly or partially on the persuasiveness of the CWS case worker’s investigation.

DISTINGUISHING DOMESTIC VIOLENCE UNDER THE PENAL CODE

The Penal Code, like Family Code sec. 6211, defines domestic violence as “abuse.” (Pen. Code sec. 13700 subd. (b).) However, the Penal Code definition of abuse is much more limiting than the definition of abuse in Family Code sec. 6203 subd. (a) and 6320 subd. (a). It pertains specifically to physical harm or a reasonable (objective) fear of substantial physical harm being about to occur. Conduct like verbal harassment, unless it involves a reasonable threat of impending substantial physical harm, is not domestic violence under the Criminal Code.

Penal Code section 13700 subd. (b) states: “’Domestic violence’ means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, “cohabitant” means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship.”

Penal Code section 13700(a) states: “’Abuse’ means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.”

Law Enforcement Response to Domestic Violence

Every law enforcement agency in the State of California must have policies in place for responding to domestic violence. (Pen. Code sec. 13701(a).) These policies must reflect that domestic violence [as defined under Pen. code sec. 13700] is alleged criminal conduct, and any request for assistance in situations involving domestic violence shall be treated “the same as any other request for assistance where violence has occurred.” (Id.)

These policies also must encourage the arrest of domestic violence offenders if there is probable cause that an offense has been committed. They must require the arrest of an offender, absent exigent circumstances, if there is probable cause* that a protective order, an ex parte order, a restraining order after hearing. or any other order issued under the Domestic Violence Prevention Act, a temporary restraining order preventing the removal of a minor child from the State of California that is within a summons issued under the Family Code, Penal Code section 136.2 [criminal court protective orders based on intimidation or threat to a victim or witness, or a reasonable likelihood of it occurring], or by a court of any other state, a commonwealth, territory, or insular possession subject to the jurisdiction of the United States, a military tribunal, or a tribe has been violated. (Pen. Code sec. 13701(b).) Peace officers shall make reasonable efforts to identify the dominant aggressor in any incident. (Id.) The dominant aggressor is the person determined to be the most significant, rather than the first, aggressor. In identifying the dominant aggressor, an officer shall consider the intent of the law to protect victims of domestic violence from continuing abuse, the threats creating fear of physical injury, the history of domestic violence between the persons involved, and whether either person acted in self-defense. (Id.) In short, if there is probable cause that a protective order or restraining order has been issued and violated, the offender must be arrested.

*An adequate working definition of the term probable cause for purposes of this page is a reasonable belief that a crime (including a violation of a protective order or restraining order issued under the Penal Code or the Family Code) has been committed and the defendant committed it.

Bodily Injury

Penal Code section 273.5 is an example of domestic violence under the Penal Code:

“Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment.”

Subsection (b) states that the victim must be:

The offender’s spouse or former spouse;

The offender’s cohabitant or former cohabitant;

The offender’s fiancé or fiancée, or someone with whom the offender has, or previously had, an engagement or dating relationship (defined as frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations); or,

The mother or father of the offender’s child.

“’Traumatic condition’ means a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. For purposes of this section, ‘strangulation’ and ‘suffocation’ include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.”

Domestic violence under this statute is a wobbler, i.e., charged as either a felony or a misdemeanor.

Abandonment and Child Neglect under the Penal Code

Apart from violent crimes against children, Penal Code sections 270-273.5 pertain to the abandonment and neglect of children.

The crime of abandonment is described in Penal Code section 270. which states in part:

“If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for his or her child, he or she is guilty of a misdemeanor punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment. If a court of competent jurisdiction has made a final adjudication in either a civil or a criminal action that a person is the parent of a minor child and the person has notice of such adjudication and he or she then willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter, medical attendance or other remedial care for his or her child, this conduct is punishable by imprisonment in the county jail not exceeding one year or in a state prison for a determinate term of one year and one day, or by a fine not exceeding two thousand dollars ($2,000), or by both such fine and imprisonment. This statute shall not be construed so as to relieve such parent from the criminal liability defined herein for such omission merely because the other parent of such child is legally entitled to the custody of such child nor because the other parent of such child or any other person or organization voluntarily or involuntarily furnishes such necessary food, clothing, shelter or medical attendance or other remedial care for such child or undertakes to do so. . . .”

This statute permits the crime to be be charged as a wobbler.

The crime of child neglect, Penal Code section 273a, states in part:

“(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

“(b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor. . . .”

Leaving a minor child in a car with the windows rolled up during the summer heat while a parent shops could be charged as child neglect under either subsection of Penal Code section 273a.

Alleged criminal domestic violence is normally prosecuted by the District Attorney in San Diego County. However, if the alleged criminal domestic violence occurs within the limits of the City of San Diego, the City Attorney generally prosecutes misdemeanor offenses.

OBTAINING A DOMESTIC VIOLENCE RESTRAINING ORDER

If you think domestic violence has occurred, whether or not as described in Family Code sections 6203(a) or 6320(a), call 911 which will dispatch law enforcement officers (LEO). The responding LEO will determine what to do until you can get to family court to request a temporary restraining order to protect you and any of the individuals named in Family Code section 6211. If probable cause to arrest exists, the alleged perpetrator generally is taken to the county’s central jail holding facility unless and until he or she posts bond (which sometimes leads to a police request for a very high-dollar bond to delay the alleged perpetrator’s release). If the responding LEO believes there are grounds for an emergency protective order under Family Code section 6250 or Penal Code section 646.91, he or she may request such an order through an assigned on-duty judge. The purpose of such an order is to protect you and others for a short time until you can can get to family court. The emergency protective order expires either five court days or seven calendar days after it is issued, whichever occurs first. (Fam. Code sec. 6256.)

CLETS is an acronym for the Department of Justice’s California Law Enforcement Telecommunications System. Once a CLETS protective order or CLETS domestic violence restraining order has been issued, it must be entered into this system so that LEOs throughout the State of California can access it. (Fam. Code sec. 6380.)

Obtaining a CLETS Domestic Violence Temporary Restraining Order

As soon as you can, call a family law attorney to assist you, or you can go to the family court business office during business hours, ask for a Domestic Violence Restraining Order Packet, and fill out the forms yourself to apply for a CLETS Domestic Violence Temporary Restraining Order (DVTRO). There is no filing fee (Fam. Code sec. 6222). You may designate anyone (without qualification) as a support person to be there with you (and throughout the litigation process, even sitting beside you in the courtroom) to help you feel more confident that you will not be injured or threatened by the alleged perpetrator (Fam. Code sec. 6303). In the forms you must complete and submit, you may request, among other things, a residence-exclusion (aka “kick-out”) order preventing the alleged perpetrator from returning to the residence at which you both reside, other property orders such as temporary exclusive use, possession and control of your car, custody and visitation orders (or, contrariwise, an order that you have sole custody and that there be no visitation awarded the alleged perpetrator), a child support order if there is a minor child of the relationship, and a spousal support order if you are married to the alleged perpetrator. To request orders regarding financial issues like support and attorney fees, you must also complete an Income and Expense Declaration (Judicial Council Form FL-150).

Under penalty of perjury, you will need to explain clearly and in writing with a reasonable amount of detail what happened, any historical pattern of domestic violence, and why you want a DVTRO and ultimately a permanent CLETS domestic violence restraining order issued against the alleged perpetrator. The judicial officer must be able to see that your allegations meet the definition of domestic violence under the Family Code. Once your forms are completed, and one of the business office clerks approves them, he or she will then deliver them to the judicial officer assigned to your case. In the meantime, you will have to wait until the forms have been reviewed by the judicial officer. The waiting time can be several hours, unfortunately, so bring your lunch, some water, and your iPad.

This delay is not the result of a slow-moving judicial officer who thinks you’re not special enough to receive his or her instantaneous attention. Rather, your request for a DVTRO will have been delivered to the judicial officer while he or she is in the courtroom with an overload of cases for that day. I have heard of judges having 5,000 active family-law cases. You must be patient and understand that you’re not the only person being served by the family court in any given day.

That said, your request for DVTRO must be determined on the same day you submit it, however, unless you have submitted it too late in the day to permit “effective” review. (Fam. Code sec. 6326.) In that case, it must be determined on the next business day (id.), and you will have to come back to pick up your paperwork the following day.

At some point, the business office clerk will call your name and let you know the result of your request for a DVTRO. If the request is granted, you will receive two certified copies of the DVTRO and Notice of Hearing with a hearing date no more than 21 days later or 25 days if good cause is shown. (Fam. Code sec. 6320.5(b).) A third copy of the original DVTRO will be entered into CLETS, and the sheriff will attempt to personally serve the alleged perpetrator (now called “the restrained party” or “respondent”) without charge, if you have requested it. The downside of having the San Diego County Sheriff’s Office serving the restrained party is that the deputy sheriff will make only one attempt and may be slow to serve when getting the restrained party served before he or she is aware of the DVTRO and may avoid service is important. Using a professional process service is the better way to go, generally. Or, you can have someone at least 18 years of age serve the restrained party. Once the restrained party is served with the DVTRO and Notice of Hearing, any violation of the DVTRO will result in the restrained party’s arrest.

If your request is denied, meaning no DVTRO has been issued, you will be asked by the clerk whether you still want to pursue a CLETS domestic violence restraining order. If you do, a “due course” hearing date will be set no earlier than sixteen court days later and realistically eight to ten weeks later.

Obtaining a CLETS Restraining Order After Hearing

At the hearing, whether or not a DVTRO is in effect, you will bring your evidence as to what happened leading to your request for a permanent CLETS Restraining Order After Hearing (ROAH). You can bring witnesses to testify on your behalf and other forms of evidence such text messages, emails, and other documents, etc., with which to prove your allegations by a preponderance of the evidence. Then, the restrained party or respondent will have his or her chance to prove through the same or similar types of evidence that things happened differently than your evidence shows, and/or that you are misrepresenting the true facts, and that what actually occurred did not arise to the level of domestic violence.

The restrained party or respondent may or may not have previously filed and served you with a written response to your request for a domestic violence restraining order. I normally have my clients prepare a written responsive declaration to the allegations and attach it to the Response to Request for Domestic Violence Restraining Order (Judicial Council Form DV-120), which is a mandatory form and must be filed and timely served on the restrained party or respondent.

After reviewing all of the evidence, the judicial officer will determine whether or not you have met your burden of proof that domestic violence occurred. If you have met your burden of proof, tye judicial officer will make a finding of domestic violence and a CLETS ROAH will be issued to protect you and any others the judicial officers believes worthy of protection. The order may include property orders, custody and visitation orders and other orders and will be in effect for a period of up to five years without renewal.

Perpetrator Lives In Another State

Can the victim who resides in California obtain a CLETS ROAH against a perpetrator living out of state? It depends on the facts. Generally, constitutional due process protects a person from being hailed to another state’s court to defend a lawsuit. In Hogue v. Hogue (2017) 16 Cal.App.5th 833, the parties had lived in California for about 17 years when they relocated to Georgia. Thereafter, to escape alleged domestic violence perpetrated by her husband in Georgia, Mrs. Hogue returned to reside in California, after which Mr. Hogue emailed her a video of a mock suicide. The appellate court found Mr. Hogue’s specific purposeful contacts with California by emailing her the video (“particularly in light of alleged domestic violence taking place in Georgia”) were enough to exercise personal jurisdiction over him.

Rebuttable Presumption Against Award of Custody to Restrained Party

For the effect of a CLETS domestic violence restraining order on legal and physical custody of a restrained party’s minor child, please see the discussion of the Family Code section 3044 rebuttable presumption at Rebuttable Presumptions and Standards of Proof.

Criminal Investigation Concurrent with Request for a CLETS ROAH

Normally, when a criminal investigation is ongoing, and whether or not a criminal complaint has been filed, the restrained party or respondent will want to delay defending a family-court request for a CLETS ROAH until after the criminal investigation has been closed or until the statute of limitations has run (i.e., until the time within which the prosecutor may bring a criminal complaint has lapsed). The reason is that the restrained party or respondent will not want to testify to anything in family court which a prosecutor may later use in a criminal prosecution against the restrained person or respondent as a criminal defendant.

As a result, after a restrained party has been served with a DVTRO and Notice of Hearing, he or she may want to delay the next hearing and appear by ex parte application or at the hearing itself in family court and request a continuance (rescheduling) of that hearing to a new date. As a matter of statutory right, the restrained party is permitted one continuance for a reasonable time during which time the DVTRO is extended and then expires at the end of the period. (Fam. Code sec. 245.) There is no guarantee as to an additional continuance, however. When the next hearing date arrives, if the restrained party believes he or she needs more time, constitutional arguments will have to be made regarding the Fifth Amendment right to avoid self-incrimination and the unfairness if he were to invoke the right against self-incrimination and not be able to defend against the request for a permanent domestic violence restraining order if the hearing goes forward without a continuance.

Assume any conviction for domestic violence under the Penal Code will constitute domestic violence under the Family Code, as the definition of abuse under the Penal Code is a subset of abuse under the Family Code. Moreover, a finding of domestic violence in criminal court will be the finding in family court because the defendant has already had his day in court under the principle of res judicata. Once a criminal conviction of domestic violence exists, the criminal court will normally issue a protective order preventing the defendant from contact and coming within a certain number of feet or yards of the victim. The protective order also will have an exception for peaceful contact for the purpose of the exchange of children under any family court custody and visitation orders. Because the criminal protective order can be revoked at any time without actual notice to the victim, the best tactic is to obtain a CLETS ROAH even though a criminal protective order is in effect.

Renewing a CLETS ROAH

The trial court has discretion to extend an ROAH. (Fam. Code sec. 6345 subd. (a).) It can be issued simply on an application showing past abuse. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.) Evidence that abuse occurred after issuance of the initial ROAH is not required. (Fam. Code sec. 6345 subd. (a) [“These orders may be renewed . . . without a showing of any further abuse since the issuance of the original orders . . .”]; see Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389 [lack of evidence of abuse during the effective period of the initial order is not a ground for denial of a request for a renewal].)

In Ritchie v. Konrad, supra, 115 Cal.App.4th at 1290, the California Court of Appeal for the Second District, Division 7, held that an objective test must be satisfied to extend restraining orders under Fam. Code sec. 6345 subd. (a): “A trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a “reasonable apprehension” of future abuse. So there should be no misunderstanding, this does not mean the court must find it is more likely than not future abuse will occur if the protective order is not renewed. It only means the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.”

In Priscila N. v. Leonardo G. (2017) 17 Cal.App.5th 267, the appellate court held that the family court has jurisdiction to renew domestic violence restraining orders issued by the juvenile court.

A request for renewal must be filed within the three-month period immediately preceding the expiration of the protective order. (Fam. Code sec. 6345 subd. (a).)

Unlike the initial CLETS ROAH, which can be ordered to expire at any time up to five years from the date it is issued (unless it is terminated prior to the expiration date), the renewal of an initial ROAH can have only one expiration date: five years from the date of its issuance. Otherwise, the renewal must be ordered permanently, subject to termination or modification.

Survival of Custody, Visitation and Support Orders on Termination or Expiration of a CLETS DVTRO, CLETS ROAH, or Renewal of a CLETS ROAH

On termination or expiration of a CLETS ROAH or the renewal of a CLETS ROAH, any custody, visitation or child or Spousal Support Orders issued as part of the protective order remain in effect until modified or terminated. (Fam. Code sec. 6340 subd. (a).)

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A final thought: A CLETS DVTRO or CLETS ROAH is only a few sheets of paper signed by a judicial officer. It is not an armed, full-time bodyguard watching your every step, 24/7. On the other hand, unless the restrained party has a psychopathy under which he or she cannot conceptualize the need to comply with its provisions, my experience has been that the overwhelming majority of those against whom a CLETS DVTRO or CLETS ROAH is in effect will comply because of the penalties for violating it. A few will try to skirt it from time to time while technically violating it (e.g., the restrained party retrieving the mail from the curbside mailbox when the restraining order prevents him or her from coming so close to the marital home), but by doing so, even they reflect their awareness of it and risks of not complying with it.